"Grammar Girl 語(yǔ)法女孩(2013年）Constitution 101: When Is Search and Seizure “Reasonable”? "

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Today’s Topic: Constitution 101 – Search and Seizure

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any reader. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

Constitution 101

This is the 14th installment of a new series on the U.S. Constitution and the Bill of Rights. For more on the Constitution, you can check out my earlier episodes on the Legal Lad Constitution page at quickanddirtytips.com, as well as my new book, The Naked Constitution: What the Founders Said, and Why it Still Matters.

Sponsor: This podcast is brought to you by ProFlowers. Get one dozen romantic rainbow roses and a free glass vase for $19.99. Call 800 P-R-O Flowers and mention “LEGAL” or go to PROFLOWERS.COM, click on the microphone in the top right corner and type in “LEGAL.”

“Where’s Your Warrant?”

Anyone who watches TV knows that if the police come to search your house, the first thing you’re supposed to ask is: “Where’s your warrant?’’ A warrant is a court order authorizing a search, and the reason why we (and Hollywood screenwriters) have come to expect them is the Fourth Amendment. This vital provision states:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

A Reaction to British Abuses

Generally speaking, the Fourth Amendment means that neither federal nor state officials can search you, your clothing, your bags, your house, your car – and so on – unless they have a search warrant supported by “probable cause.” The Amendment was motivated by America’s experiences with so-called “Writs of Assistance,” or general warrants, issued by the British Crown. These writs granted general search powers to British colonial officials, who could then search virtually any home they liked, for any reason.

The Exclusionary Rule

Although the Founders of the Constitution felt very strongly about search warrants, the Fourth Amendment does not outline what the consequences are when the government conducts warrantless searches. In the 1914 case of Weeks v. United States, the Supreme Court held that federal prosecutors could not introduce illegally obtained evidence in court. This rule – now known as the exclusionary rule – was applied to state courts in the 1961 decision of Mapp v. Ohio.

Exceptions to the Warrant Requirement

As important as the Fourth Amendment is, the warrant requirement is riddled with exceptions. Consent, for example. A person who consents to a police search generally cannot complain after the fact that the police lacked a warrant. There is also a plain view exception – the police can examine items that are in plain view without a warrant, but they still need “probable cause” that the items are contraband or otherwise relevant to a police investigation.

The Special Needs Exception

There is also a catch-all “special needs” exception, which has been used to uphold airport luggage screening as well as random airport searches, highway sobriety checkpoints, border patrol checkpoints, and student searches in school (a topic that I addressed in an earlier episode on Strip Searches in Schools). This doctrine comes from the Supreme Court’s 1985 decision in New Jersey v. TLO, in which the Court recognized that there are certain “exceptional circumstances . . . beyond the need for normal law enforcement [that] make the warrant and probable cause requirement impractical.”

Airport Searches

Courts have held that airport searches fall into the “special needs” exception – that’s why the TSA doesn’t need a warrant to go through your luggage. But such searches are still subject to the Fourth Amendment’s requirement that searches be “reasonable,” and this has generated litigation regarding the TSA’s more intrusive search methods such as backscatter technology, as I described in an earlier episode on the New Airport Searches. In 2006, for example, the Sixth Circuit Court of Appeals held that airport searches must be “minimally intrusive” and that officials may only resort to “more invasive” methods after an initial screening has indicated some cause for concern.

So far, however, challenges to the TSA’s screening techniques have not been successful. In October 2012, the Supreme Court refused to consider a challenge to the new airport scanner machines brought by Jonathan Corbett, who runs the TSA Out of Our Pants! blog. Now that would have been an interesting case!

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